Operator commits over $54,000 on mass education initiatives in enforceable undertaking

The National Heavy Vehicle Regulator (NHVR) has accepted an enforceable undertaking (EU) from equipment rental hire company, Pacific Hire Wangaratta Pty Ltd (PHW), after the operator failed to ensure one of its heavy vehicles complied with mass requirements.

In this article, we unpack the conduct that led to the severe mass breach, the accepted terms of the EU (including an unprecedented commitment to spend over $54,000 on mass education initiatives), and look at the reasons why, in this case, the NHVR again opted for an EU over enforcement by way of court proceedings.

The alleged contravention

On 29 September 2020, PHW permitted an employee to drive a company truck on a road at Dandenong South in Victoria without ensuring that the vehicle, its components and load, complied with mass limits.

The position of the load on the truck caused the weight to exceed the limit on the front steer axle group, which has a maximum permitted mass of 11,000 kg (11.0 tons) according to the NHVR’s General Mass Limits (GML). The mass that was allegedly detected on the front steer axles was 15.40 tons – almost 140 per cent of the prescribed GML, classifying the combination as a ‘severe risk breach’ under section 96(1) of the Heavy Vehicle National Law (HVNL). The maximum penalty for this type of breach (noting that multiple breaches of the HVNL may result from one incident) is $10,000 plus an additional maximum of $500 for every 1 per cent over a 120 per cent overload (not exceeding $20,000).

According to the EU, the jobsite did not allow the employee to access the deck of the truck to properly position the load. However, PHW accepted that it fell within the scope of its responsibilities to ensure that all vehicles and drivers complied with the HVNL and the HVNL Regulations regardless of the conditions of the jobsite.

The NHVR commenced prosecution against PHW with a maximum penalty of $68,970 for the breaches making up the offence.

The proposed and accepted terms of the EU

PHW applied to the NHVR to propose an EU for the alleged contravention and it was accepted. The EU included the following four mass education initiatives:

• load restraining training – training all staff in safety regulations relating to loading restraints. The training was tailored to PHW’s operations in the construction industry and involved demonstrations with PHW’s own equipment. This was completed prior to the signing of the EU at a cost of $4,500
• in-house driver handbook creation – the creation of in-house driver handbook tailored to PHW and to complement third party training. A copy of the handbook is to be kept in each truck and an electronic version made available to the industry as a downloadable resource from PHW’s website and accessible via its social media. This initiative was estimated to cost $9,380
• Elevated Work Platform (EWP), forklift and yellow card training – training all staff to operate and transport high risk equipment (EWP, forklift and yellow card) to ensure the safe stowage of hire equipment at a cost of $40,482.00 (including investment)
• safety management system audit – bi-annual safety management system audits and reviews conducted by senior management and discussion of transport procedures and processes with staff at monthly ‘toolbox’ meetings. The cost of these audits was covered by wages. 

The total estimated cost of the above mass education initiatives was an extraordinary $54,362.00.

The deciding factors

In accepting PHW’s EU application under section 590A of the HVNL, the NHVR had regard to the EU Guideline we referred to in last month’s edition and the following considerations:

• there was no manifestation of the risk in this incident
• there was no evidence of systematic non-compliance with the HVNL on the part of PHW
• since commencing operations in Australia in 2006, PHW had no previous convictions under the HVNL, breaches of safety duties under state or federal law, any failures to comply with any EU or any offence involving death, serious injury or illness in its business
• PHW was committed to ongoing effective risk management within its business operations and taking all reasonably practicable steps to prevent similar future breaches
• PHW completed four rectifications prior to applying for the EU which involved the purchase of several new heavy vehicles for $2,014,000 and $34,000 in annual maintenance costs
• the training and education initiatives proposed would ensure the wide reach of valuable information within PHW and the transport community, and lead to fewer contraventions
• PHW had the ability, including the financial ability, to meet the terms of the EU.

EU as preferred enforcement mechanism to prosecution

As set out in the NHVR’s reasons, the EU was preferred to prosecution in this case because:

• this was an opportunity for long-term organisational change within PHW and the transport industry
• the EU proposed substantial changes that could influence the broader industry to take greater measures to address fitness for duty in drivers
• the benefits of the initiatives “have a greater direct impact on promoting safety awareness in the industry than a conviction and financial penalty from prosecution alone”
• education, systems and training that result in fewer contraventions mean safer heavy vehicles and less impact on road infrastructure.

Final word

The PHW case is another example of how an EU will be the preferred enforcement mechanism of the NHVR if it considers that more safety benefits will be achieved from the proposed initiatives than a court fine. This was clearly the case here, where PHW’s proposed and ultimately accepted EU involved spending large amounts of money on mass education initiatives that not only improved its internal safety practices but that had clear and potentially significant safety benefits for the industry as a whole. 

Authors: Melanie Long & Isabella Costa

• This article was originally published in CoR Adviser. The article is © 2022 Portner Press Publishing Pty Ltd and has been reproduced with permission of Portner Press.

Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

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